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James Madison University students celebrate each semester with a large block party in a popular neighborhood near campus. Normally, about 2,000 people show up for the "Springfest." But last week more than 8,000 arrived, turning the normally quiet Harrisonburg, Va., town into what the student newspaper there called a "war zone." Partygoers began throwing rocks, beer bottles and cans, injuring dozens of people and causing serious property damage. Two hundred police officers, many wearing riot gear, tried to quell the violence with tear gas, pepper spray and foam projectiles. "When you are setting off tear gas and people still aren't leaving, you know it's bad," said Lt. Kurt Boshart of the Harrisonburg Police Department. "It was really bad."

Police arrested at least 17 people during the April 10 riot and they quickly began reviewing uploaded YouTube videos to identify more suspects. With the abundance of evidence online, searching through videos can be an effective way to start an investigation. But the Harrisonburg Police Department didn't stop there. Armed with a search warrant, they raided the newsroom of the university's student newspaper, The Breeze, seizing all photographs of the rioting. By doing so, they likely violated a federal law that exists specifically to protect journalists from overly intrusive searches and seizures.

According to U.S. Department of Justice guidelines (.pdf) the federal Privacy Protection Act makes it unlawful for a government officer “to search for or seize” materials when:

the materials are “work product materials” prepared, produced, authored, or created “in anticipation of communicating such materials to the public,” 42 U.S.C. § 2000aa-7(b)(1);

the materials include the “mental impressions, conclusions, or theories” of their creator, § 2000aa-7(b)(3); and

the materials are possessed for the purpose of communicating the material to the public by a person “reasonably believed to have a purpose to disseminate to the public” some form of “public communication,” § 2000aa-7(b)(3), §
2000aa(a); or

the materials are “documentary materials” that contain “information,” § 2000aa-7(a); and

the materials are possessed by a person “in connection with a purpose to disseminate to the public” some form of “public communication.” §§
2000aa(b), 2000aa-7(a).

In these situations, the government must use a subpoena or other compulsory process rather than a search warrant. There are, however, several exceptions to the statute. § 2000aa(a), (b). A warrant will suffice if:

there is probable cause to believe that the person possessing the materials has committed or is committing the criminal offense to which the materials relate, except when the offense consists of the receipt, possession, communication, or withholding of such materials;

the seizure of materials would prevent death or serious bodily harm;

there is reason to believe that giving of notice pursuant to a subpoena will result in destruction, alteration, or concealment of the materials; or

the party possessing the materials has not complied with a court order directing compliance with a subpoena for those materials.

None of these exceptions apply to The Breeze. Reporters for the newspaper only recorded evidence of crimes; there is no reason to believe that they participated in them, and the photographs themselves aren't contraband. The Breeze has no reason to destroy or conceal the photos, and it has not failed to comply with any legal process.

The Privacy Protection Act is especially important in Virginia. The commonwealth is one of only 13 states that do not have a shield law to protect journalists from compelled disclosure of sources or newsgathering materials. Virginia courts do recognize a qualified reporter’s privilege under the First Amendment that applies to the identity of sources and unpublished information collected or prepared during newsgathering, but they have not expressly defined who is a "reporter" for
purposes of the privilege, so whether or not amateur and non-traditional journalists can take advantage of the privilege is an open question.

In contrast, the Privacy Protection Act clearly protects student journalists. It applies to anyone newsgathering for "a newspaper, book, broadcast, or other similar form of public
communication." 42 U.S.C. § 2000aa(a), (b). Congress passed the Privacy Protection Act in response to a case with remarkably similar facts to the Breeze raid. In 1971, California police officers obtained a warrant to search the office of The Stanford Daily, Stanford University’s student newspaper. Police believed that the paper had photos of a group of protesters who had clashed with police. Those photos, the police hoped, would identify those protesters. In Zurcher v. The Stanford Daily,
436 U.S. 547 (1978), the U.S. Supreme Court found the search to be constitutional under the First and Fourth Amendments, noting, however, that "the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections" for searches of the press.

The Zurcher ruling prompted Congress to take action. In passing the Privacy Protection Act three years later, it declared that the statute provided "the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment." S. Rep. No. 96-874, at 4 (1980).

By sealing the confiscated materials, Virginia may now be reconsidering whether or not police were justified in searching The Breeze. Strict enforcement of the Protection of Privacy Act is needed in Virginia, especially for student publications. Hopefully, the state will reverse its position, or maybe a court will eventually rule against the actions of the police. If so, the student newspaper can then consider the search just a teaser to its next big story.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.)

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